### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON February 20, 2001 Session PHILLIP OWEN PAGE v. LUCILLE GREER PAGE Direct Appeal from the Circuit Court for Shelby County No. 160522 John R. McCarroll, Jr., Judge

No. W2000-01314-COA-R3-CV - Filed May 15, 2001

This appeal arises from a divorce action to end a t we nty-five year marr

iage. Wife was forty-nine yearsold and who served as a homemaker for the majority of

the mar ria ge. H usb and was als o fo rtynineyearsold and worked as a sales manager earning approximately $95,000 in salary and

a bonus check that varied based upon theprofit of his employer. This bonus check was typica lly $40,000. Wife wa s granted a divorce on the grounds of inappropriate marital conduct and awar ded rehabilitativealimony

o f approximately $40,000 a year for the ne xt five years, as well as alimony in solido of 25% of

Husband’s bonus check for the next five years. Wife was also awarded 50% of husband’s retirement plan. Wife appealed arguing that she was entitled to anawar d ofali mon y in futuro , to a l arge r year ly a lim ony a ward , an d th at a n aw ard o f al imo ny in solido based upon the future earnings of Husband could not be granted. We affirm as modified. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed; and Remanded
D AVID R. F ARMER , J., delivered the opinion of thecourt, in w

hich W. F RANK C RAWFORD , P.J., W.S., joined. H OLLY K. LILLARD , J. filed a separate opinion concurrin

g in part, dissent

ing in part. Robert A. Wampler, Memphis, Tennessee, for the appellant, Lucille Greer Page

. William W. Dunlap, Jr., Memphis, Tennessee, for the appellee, Phillip Owen Page.
OPINION After twenty-five ye

ars of marriage, Phillip Page (Husband) filed for divorce on October 2, 1998 alleging

irreconcilable

differences. L

ucille Page (Wif

e) filed an answ

er and counterc

laim citing the same a

llegation. Both

parties later am

ended their compl

aints to allege in

appropriate mar ita l co ndu ct b y the oth er pa rty. At the time of trial, Husband was a forty-nine y ear old sales manager earning approximately $95,000 per year with a y early bonus based upon his company’s e arnings. Wife1 The actual award of rehabilitative alimony varied by years as follows:
Year 1 $36,000 Year 2 $39,000 Year 3 $42,000 Year 4 $30,000 Year 5 $30,000
2 This check usually

amounts t

o $40,000. -2- was age forty-nine with a B.S. in Business Education. She had be en unemployed for nineteen years due to the fact that she served as a homemaker for the majority of the marriage. After the separation, Wife

began attendin

g State Tech in Me

mphis to develop her

computer skills. The trial court granted Wife a divorce on the grounds of inappropriate marital conduct. The court split the marital property in the manner agreed by the parties. Wife requested an award of al imo ny in futuro , but this request was denied. The court instead granted Wife rehabilitative alimony that v

aried between $30,000 and $42,000 a year for

a period of five y

ears. 1 Wife was also awarded twenty-five percent (25%) of H usband’s net bonus check each year for the next five years as al imo ny in solido

. 2 In addition, Wife was awarded fifty perc ent (50%) of Husband’s pension. This appeal followed. The issues prese

nted by the a

ppellant, as we pe

rceive them, ar

e as follows:
I. Did the trial court err in the type of alimony a warded to Wife?
II. Did the trial court err in the amount of alimony awarded to Wife?
To the extent that the

se issues involve qu

estions of fact, o

ur review of the

trial court’s rul

ing is de novo with a presumption of correctness. See Tenn. R. App. P. 13(d). Accordingly, we may not reverse the court’s factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996); Tenn. R. App. P. 13(d). With respe

ct to the court’s le

gal conclusions, however, our r eview is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. , 986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d). Trial courts have broad discretion to determine whether spousal support is needed and, if so, its nature, amount, and duration. Kinard v. Kinard , 986 S.W.2d 220, 234 (Tenn. Ct. App.

1998); Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996). "Appellate courts are generally disinclined to second-guess a trial judge's spousal sup

port decision unle

ss it is not supported b

y the evidence or

is contrary to the pu

blic policies ref

lected in the appl

icable statutes ." Kinard , 986 S.W.2d at 234.-3-

Fraysier v. Fraysier, No. E2000-02485- COA-R3-CV, 2001 WL

194351, at *3 (Ten

n. Ct. App.Feb. 27, 2001). Type of Award Section 36-5-101(d)(1) of the Tennessee Code states that [i]t is the intent of the

general asse

mbly that a sp

ouse who is economi

cally disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an order for payme nt of rehabilitative, temporary support and maintenance. Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those set out in this subsection, then the court may grant an order for pay ment of support and maintenance on a long-term basis or until the death or remarriage of the recipient . . . . Rehabilitative support and maintenance is a separate class of spous al sup port a s dis tingu ished from a limo ny in so lido and pe riodi c alim ony. In determining whether the granting of an order for pay ment of support and maintenance to a

party is app

ropriate, and in d

etermining the n

ature, amount, length of term, and manner of payment, the court shall consider a ll relevant factors, in cluding: (A) The relative earning capacity, oblig ations, needs, and financial resources of each party, including income fr om pension, profit sharing or retirement plans

and all other sour

ces; (B) The relative education and training of each party , the ability and opportunity o

f each party

to secure such e

ducation and trai

ning, and the nec

essity of a party to secure further education and training to improve such party's earning capacity t o a reasonable le

vel; (C) The duration of the marriage; (D) T he ag e and men tal con dit ion of ea ch p art y; (E) The physical condition of each party , including, but not limited to, physical disability or incapacity due to a chronic debilitating disease; (F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage; (G) The separate assets of each party, both re al and personal, tangible and intangible; (H) The provision

s made with rega

rd to the marital pr

operty as de

fined in § 36-4-121; (I) The standard of living of the parties established during the marr iage; (J) The extent to whic

h each party

has made such tan

gible and intang

ible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or inc reas ed ea rni ng po wer o f th e ot her p art y;3 “[A]n award of rehabilitative a limony rema ins modifiab le by the cour ts. Tenn. Co de Ann. § 36-5-10 1(d), in

pertinent part provides:

An award of rehabili

tative, temporary support an

d maintenance

shall remain in the court’s control for t

he duration of s

uch award, and may be i ncrea sed, decreased, (continued ...) -4- (K) The relative

fault of the parti

es in cases wher

e the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each party , as are necessary to consider the eq

uities between the

parties. Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 2000).

The pref eren ce fo r reh abi lit ati ve al imo ny ov er al imo ny in futuro was set forth by our Supreme Court in Self v. Self , 861 S.W.2d 360, 361 (Tenn. 1993): [Tenn. Code Ann. § 36-5-101 (d)(1)] reflects an obvious legislative policy that, if possible, the dependency of one ex-spouse on the other be eliminate

d and both parties b

e relieved of the

impediments incident to the dissolved marriage, and that an ex-spouse be adjudged permanently dependent upon the other only when the court granting the divorce finds that economic rehabilitation is not feasible and long-term support is necessary. It is clear from the opinion in Self that a trial court

should grant alim

ony in futuro only w

hen rehabilitatio

n is not feasible a

nd such long term

support is necessary. See also Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992). The trial court must, therefore, make a threshold determination that, considering all relevant factors, rehabilitation of the economically disadvantag ed spouse is not feasible. See Kincaid v. Kincai d , 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). Fraysie r, 2001 WL 194351, at *4. In the case before us, it is clear that the trial court properly considered and rejected the requ est for ali mon y in futuro
. The trial court sta ted in its oral conc

lusions that “I

think that Mrs. Page is entitled to some rehabilitative alimony, and I think it ought to be for a period of five years .” In add iti on, the cou rt u neq uiv ocal ly rejec ted ali mon y in futuro . “I don’t think there should be any

periodic alimony

until she remarri

es or dies; I th

ink it ought to be jus

t rehabilitative.” The trial court specifically stated that “pursuant to T.C.A. 36-5-101" Husband “shall pay to [Wife] rehabilitative alimony for a period of five (5) years.” As the trial court properly considered the relevant factors as provided unde r section 36-5-101 of the Tennessee Code, and because we do not find the trial court’s award of spousal support to be contrary to the evidence or to public policy , we hereby affirm the trial court’s award of rehabilitative alimony. 33 (...continue d) termina ted, or extended, or otherwise modified upon a showing of substantial and material change in circumstances. Thus, the co urts retain authority during the period of rehabil itation to modify the award as changing circumstances

may require

. See Self v. S elf , 861 S.W .2d [360 ,] 363; Loria v. L oria , 952 S.W.2d 836, 838; see also Wiseman v. Wiseman , No. 03 A01-96 12-CV -00392 , 1997 W L 4184 95, at *2 (T enn. Ct. App. Jul. 28, 19 97), perm. app. denied ; Som merville v . Som merville , No. 01-A-01- 9502-CV-00070, 1995 W L 498943, at *1 (Tenn. Ct. App. Aug. 23, 1995 ) ( no perm. app. filed).”
Stockman v. Stockman , No. 01A01-9801-CH -00026, 1999 W L 617637, at *4 (Tenn. Ct. App. Aug. 17, 1999 ).

4 Wife refer s specifically to the award of 25% of Husband’s bonus chec k. -5- We note that Wife has also argued that an alimony in solido award cannot be based on future earnings

. 4 Alimony in solido is normally not based on future earnings, however, “[e]xtreme circumstances could arise where it might be necessary to do so.” Record v. Record , No. W2000-01294-COA-R3-CV, 2000 WL 1880275, at *10 (Tenn. Ct. App. Dec. 28, 2000) (quoting Aleshire v. Aleshire , 642 S.W.2d 729, 733 (Tenn. Ct. App. 1981)). Upon consideration, we find that the award to one spouse of a yearly bonus check that varies in amount does not qualify as an “extreme circumstance” allowing the court to award a percenta ge of such bonuses to the other spouse as alimony in solido . However, in ligh t of the factors li

sted in section 36-5-101(d)(1) of the Tennessee Code, we find that the award to Wife of a per centage of Husband’s bonus check is correct. As such, we hereby modify this award and find that Wife should be awarded twenty-five percent (25%) of Husband’s bonus check as part of he r rehabilitative alimony. The finding of the trial court is affirmed as modified.
Amount of Award “The amount of alimony to be allowed in any c ase is a matter for the discretion of the trial court in view of the particular circumstances, for the appellate courts are disinclined to review such discretion except in cases where it has manifestly been abused.” Hanover v. Hanover , 775 S.W.2d 61 2, 617 (Tenn . Ct. App. 1 989) (citi ng Ingram v. Ingram , 721 S.W.2d 262 (Tenn. Ct. App. 1986)). Upon our review of the facts and circumstances surrounding the amount of alimony awa

rded by the

trial court in this c

ase, we find that

the court did not ma

nifestly ab

use its discretion. As suc

h, we hereby

affirm the amount

of alimony a

warded by t

he trial court.
Conclusion
Based on the for

egoing conclu

sions, we hereby

affirm the trial c

ourt judgment as

modified. Costs on appeal are assessed against the Appellant, Lucille Page, and he r surety, for whi ch ex ecut ion may i ssu e ifnece ssa ry.-6- ___________________________________ DAVID R. FARMER, JUDGE